Relying on United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), and United States v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421 (D.C. Cir. 1975), the defendant argues that Mitchell's failure to retain contemporaneous notations of the times various events took place prevented effective cross-examination and thus that Mitchell's testimony should have been stricken. These times were subsequently made a part of a typed report referred to by Officer Mitchell during his testimony and used by the defense on cross-examination.

This same contention was made in United States v. Vella, 562 F.2d 275 (3d Cir. 1977), where the Court of Appeals, per curiam, rejected the government's assertion that the preservation of such notes would constitute an unnecessary burden on law enforcement resources, and held that these notes "should be kept and produced so that the trial court can determine whether the notes should be made available to the [defendant] under the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), or the Jencks Act [ 18 U.S.C. § 3500]." The court did not require the production of the notes in that case, however, concluding that the failure to preserve the notes was harmless error in light of the other evidence in the record as well as the apparent good faith administrative decision which led to the notes' destruction. The same reasoning must be applied here. Whether or not the events in question happened at certain precise times or not was really of little import. The jury was well aware of the clash of testimony between Mitchell's account of his conversation with Heard in the bar and the way in which Heard described that same event. The jury rejected Heard's version and accepted Mitchell's, but not because Mitchell was precise about minutes or hours and Heard was not. Defense counsel's ability to comment about the failure to preserve the notes and about a mistake in Mitchell's report concerning the number of bundles purchased was far more valuable then a list of times from Mitchell ever could have been.

Heard's second argument is that he was prejudiced when I instructed the jury on the proof that would be required for a guilty verdict as to Ford.

In view of United States v. Bryan, 483 F.2d 88 (3d Cir. 1973), United States v. Azadian, 436 F.2d 81 (9th Cir. 1971), and United States v. Provenzano, 334 F.2d 678 (3d Cir.), cert. denied 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964), my charge as to Ford was probably more favorable than the Court of Appeals would require. In Bryan a defendant's conviction of aiding and abetting was affirmed despite the fact that his co-defendant, charged as a principal, had been acquitted because of a reasonable doubt as to his criminal intent. In Azadian, supra, the principal was found not guilty by reason of entrapment, but the conviction of the aider and abettor was affirmed. Provenzano states as a general rule that in order to convict a defendant of aiding and abetting, the proof must establish "the crime in question was committed by someone and that the person charged as an aider and abettor, aided and abetted in its commission." 334 F.2d at 691. It is not a prerequisite, however, that the principal be tried and convicted or in fact even be identified.

Based on these cases, it could certainly have been argued by the government that my charge was too favorable as to Ford. The corollary urged by Heard that the charge was therefore prejudical to him just does not follow. Under the facts in this case and the charge to that point, the limiting, cautionary words as to Ford were necessary. Prior to this time, I had given careful and explicit instructions concerning Heard. It then became necessary to consider the requisites for a guilty verdict as to Ford, a matter which could have been handled in one of three ways.

First, I could have ignored the logical and legal connection between aiding and abetting and the actual distribution of heroin and said nothing about it. To have done so would have been to reject common sense and the teachings of Provenzano, supra. See 334 F.2d 691.

Secondly, the language of Provenzano could have been employed and the jury told that Ford could only be guilty if he aided and abetted "someone" in the distribution of heroin. But, under the facts of this case, that "someone" could only have been Norman Francis Heard. Heard admitted he handed the heroin to Officer Mitchell. There was no testimony and no contention that anyone else had done so. At oral argument, counsel for Heard suggested that perhaps Ford might have entrusted the heroin to Slim who in turn asked Heard to deliver it. The introduction of another person between Ford and Heard would not affect the guilt of either. If Heard knowingly delivered heroin and if Ford participated in the crime in some way, both were guilty. Assuming there was a Slim, what he did or did not do, knew or did not know, would be immaterial as to their guilt.

I reject Heard's argument that the jury so wanted to convict Ford,
*fn3"
that to do so its members were willing to convict Heard although they thought he was innocent. To accept this contention would require me to believe that the jurors were so prejudiced against Ford
*fn4"
that they would ignore my instructions and their solemn oaths and further that they were stupid, hypocritical, and disingenuous. I have no basis for doing so.

Heard's trial was fair. Under all the circumstances, there was no error in the charge which prejudiced Heard. His motions must be refused.

ORDER

AND NOW, this 27th day of September, 1977, for the reasons set forth in the foregoing opinion, the motion of Norman Francis Heard for a new trial is hereby refused. The defendant is ordered to report for sentencing on Friday, October 21, 1977, at 9:30 A.M., in Courtroom 6A, United States Courthouse, Philadelphia, Pennsylvania.

BY THE COURT:

J. WILLIAM DITTER, JR. / J.

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